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On proof of Civil Litigation evaluation system

Author: DingHuiLan
Tutor: DuanHouSheng
School: Fudan University
Course: Legal
Keywords: System of Proof Assessment of Proof Influential Factors
CLC: D925.1
Type: Master's thesis
Year: 2008
Downloads: 51
Quote: 0
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Abstract

The system of proof in Chinese civil litigation consists of four aspects: object of proof, burden of proof, standard of proof and assessment of proof. Assessment of proof means the determination of matters by a judgment, on the basis of the assessment of the overall proof process, of matters of fact in a civil case over which parties to the case are in dispute, including determination of matters of fact through confirmed and adopted means of proof way, determination of matters of fact through self cognizance or judicial cognizance despite the absence of proof as well as the negative determination of the matters of fact in a civil case as asserted by a party to the case by the judge in light of the fact that no proof is provided by the party and there is neither self cognizance or judicial cognizance.Proof assessment comprises the following aspects: assessment of procedural issues such as jurisdiction over the case and the objects of the case; assessment of whether proof is needed for assertion of matters of fact by a party; assessment of the qualification as proof of the evidence put forward by a party; assessment of the competence of evidence; assessment of the authenticity of matters of fact serving as objects of proof.In their treatment of the judicial proof assessment system, scholars of the continental law system tend to associate the system closely with the object of proof, measurement of proof (through which ambiguity of authenticity of matters of fact may be consciously eliminated), subjective burden of proof, objective burden of proof as well as the mode of proof assessment. Compared with the proof and assessment system in the continental law system, the proof assessment system under the Anglo-American law system has three distinctive characteristics: firstly, complexity of the rules of proof. Anglo-American system of proof assessment is not only far more complex than its counterpart under the continental law system, it is also clearly distinguished from conventional investigation method as used in general social practice; secondly, pre-qualification of evidence materials as seen and heard by the ascertainers of matters of fact. The most distinct manifestation of this feature is that the evidence materials of competency may be rejected on the ground that the competence of such evidence may have been exaggerated or may result in prejudice on the judges; thirdly, the obvious intent to control the evidence analysis by the ascertainers of the fact(assessment of competence of evidence). The ascertainers of matters of fact under the Anglo-American law system tend to attribute more weight to such factors as history, tradition, precedent, policy, litigation cost and litigation purpose etc.Proof assessment activities by judges in China are affected by the object of proof, burden of proof and standard of proof and vice versa. Furthermore, the proof assessment by judges is also affected by the mode of such assessment. Apart from the afore-mentioned factors, proof assessment by judges is also affected by the peripheral factors of the proof system, including the constant evolution of the proof form and evidence power of the subjects of litigation, configuration of judicial power as well as local protectionism.As the current Chinese proof assessment system is still plagued by such issues as the over-staffing and under-qualification of judges and the lack of independence of the judicial system, therefore, how to improve the Chinese proof assessment system should be treated as top priority in the reform of the Chinese judicial system.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Civil Procedure Law
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